Citation Nr: 0812185	
Decision Date: 04/11/08    Archive Date: 04/23/08

DOCKET NO.  03-31 588	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, 
West Virginia


THE ISSUES

1.  Entitlement to an initial disability rating higher than 
10 percent for a thoracic spine disability.

2.  Entitlement to an initial disability rating higher than 
10 percent for migraine headaches prior to December 19, 2003, 
and in excess of 30 percent for the disability beginning 
December 19, 2003.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

L. Cramp, Counsel


INTRODUCTION

The veteran served on active duty from August 1983 to June 
1987.  

This case comes before the Board of Veterans' Appeals (Board) 
on appeal of a February 2003 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Huntington, West Virginia.

In June 2004 and March 2007, the Board remanded these issues 
for additional evidentiary development.  The case has since 
been returned to the Board for further appellate action.  
Since the originating agency's most recent consideration of 
the veteran's claims in November 2007, the veteran has 
submitted additional evidence.  For the most part, the 
evidence is duplicative of evidence already of record or is 
not relevant to the issues on appeal.  The report of a 
January 2008 MRI study of his thoracic spine is relevant, but 
cumulative of the evidence already of record.  Therefore, a 
remand for consideration of this evidence is not required.


FINDINGS OF FACT

1.  The veteran's thoracic spine disability is productive of 
no significant functional impairment.

2.  Throughout the initial rating period, the veteran's 
migraine headaches have been manifested by characteristic 
prostrating attacks occurring on an average once a month.


CONCLUSIONS OF LAW

1.  The criteria for an initial disability rating higher than 
10 percent for a thoracic spine disability are not met.  
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic 
Codes 5010, 5242 (2007).

2.  Throughout the initial rating period, the criteria for a 
30 percent disability rating, but not higher, for migraine 
headaches have been met.  38 U.S.C.A. § 1155 (West 2002); 
38 C.F.R. § 4.124a, Diagnostic Code 8100 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The veteran is seeking higher initial disability ratings for 
his service-connected thoracic spine disability and migraine 
headaches.  The Board will initially discuss certain 
preliminary matters, and will then address the pertinent law 
and regulations and their application to the facts and 
evidence.

The Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified 
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & 
Supp. 2007), and the pertinent implementing regulation, 
codified at 38 C.F.R. § 3.159 (2007), provide that VA will 
assist a claimant in obtaining evidence necessary to 
substantiate a claim but is not required to provide 
assistance to a claimant if there is no reasonable 
possibility that such assistance would aid in substantiating 
the claim.  They also require VA to notify the claimant and 
the claimant's representative, if any, of any information, 
and any medical or lay evidence, not previously provided to 
the Secretary that is necessary to substantiate the claim.  
As part of the notice, VA is to specifically inform the 
claimant and the claimant's representative, if any, of which 
portion, if any, of the evidence is to be provided by the 
claimant and which part, if any, VA will attempt to obtain on 
behalf of the claimant.  In addition, VA must also request 
that the veteran provide any evidence in the claimant's 
possession that pertains to the claim.  

The Board also notes that the United States Court of Appeals 
for Veterans Claims (Court) has held that the plain language 
of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to 
a claimant pursuant to the VCAA be provided "at the time" 
that, or "immediately after," VA receives a complete or 
substantially complete application for VA-administered 
benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 
(2004).  The Court further held that VA failed to demonstrate 
that, "lack of such a pre-AOJ-decision notice was not 
prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as 
amended by the Veterans Benefits Act of 2002, Pub. L. No. 
107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n 
making the determinations under [section 7261(a)], the Court 
shall . . . take due account of the rule of prejudicial 
error")."  Id. at 121.  

The timing requirement enunciated in Pelegrini applies 
equally to the initial-disability-rating and effective-date 
elements of a service-connection claim.  Dingess v. 
Nicholson, 19 Vet. App. 473 (2006).

In the case at hand, the originating agency provided the 
veteran with the notice required under the VCAA, by letter 
mailed in June 2004 and the Supplemental Statement of the 
Case mailed in October 2007.  The June 2004 letter included 
notice that the veteran should submit any pertinent evidence 
in his possession, and the Supplemental Statement of the Case 
included notice with respect to the effective-date element of 
the claims.  Although the required notice was not sent prior 
to the initial adjudication of the claims, the Board finds 
that the veteran has not been prejudiced by this timing 
error.  In this regard, the Board notes that the relevant 
evidence received since the originating agency's most recent 
adjudication of the claims is duplicative or cumulative of 
the evidence previously of record.  There is no indication or 
reason to believe that the ultimate decision of the 
originating agency on either claim would have been different 
had complete VCAA notice been provided at an earlier time.

The Board also notes that the veteran has been afforded 
appropriate VA examinations and service medical records and 
pertinent post-service medical records have been obtained.  
Neither the veteran nor his representative has identified any 
outstanding evidence, to include medical records, that could 
be obtained to substantiate either claim.  The Board is also 
unaware of any such outstanding evidence. 

In sum, the Board is satisfied that any procedural errors in 
the development and consideration of the claims by the 
originating agency were insignificant and non-prejudicial to 
the veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  
Accordingly, the Board will address the merits of the claims.  

Legal Criteria

Disability evaluations are determined by the application of 
the VA's Schedule for Rating Disabilities (Rating Schedule), 
38 C.F.R. Part 4 (2007).  The percentage ratings contained in 
the Rating Schedule represent, as far as can be practicably 
determined, the average impairment in earning capacity 
resulting from diseases and injuries incurred or aggravated 
during military service and their residual conditions in 
civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 
3.321(a), 4.1 (2007).

Where there is a question as to which of two evaluations 
shall be applied, the higher evaluation will be assigned if 
the disability picture more nearly approximates the criteria 
required for that rating.  Otherwise, the lower rating will 
be assigned.   
38 C.F.R. § 4.7 (2007).

The Court has held that evaluation of a service-connected 
disability involving a joint rated on limitation of motion 
requires adequate consideration of functional loss due to 
pain under 38 C.F.R. § 4.40 (2007) and functional loss due to 
weakness, fatigability, incoordination or pain on movement of 
a joint under 38 C.F.R. § 4.45 (2007).  See, in general, 
DeLuca v. Brown, 8 Vet. App. 202 (1995).   

The provisions of 38 C.F.R. § 4.40 state that the disability 
of the musculoskeletal system is primarily the inability, due 
to damage or infection in parts of the system, to perform the 
normal working movements of the body with normal excursion, 
strength, speed, coordination, and endurance.  According to 
this regulation, it is essential that the examination on 
which ratings are based adequately portrays the anatomical 
damage, and the functional loss, with respect to these 
elements.  In addition, the regulations state that the 
functional loss may be due to pain, supported by adequate 
pathology and evidenced by the visible behavior of the 
veteran undertaking the motion.  Weakness is as important as 
limitation of motion, and a part which becomes painful on use 
must be regarded as seriously disabled.  38 C.F.R. § 4.40 
(2007).

The provisions of 38 C.F.R. § 4.45 state that when evaluating 
the joints, inquiry will be directed as to whether there is 
less movement than normal, more movement than normal, 
weakened movement, excess fatigability, incoordination, and 
pain on movement.

The intent of the schedule is to recognize painful motion 
with joint or periarticular pathology as productive of 
disability. It is the intention to recognize actually 
painful, unstable, or malaligned joints, due to healed 
injury, as entitled to at least the minimum compensable 
rating for the joint.  38 C.F.R. § 4.59 (2007).

Analysis

Thoracic Spine

The Board notes initially that the veteran is separately 
service connected for a cervical spine disability, and that 
issue is not before the Board.  

The veteran is currently assigned a 10 percent rating for 
disability of the thoracic spine under Diagnostic Code 5010, 
which provides that traumatic arthritis will be rated as 
degenerative arthritis under Diagnostic Code 5003.  Under 
Diagnostic Code 5003, degenerative arthritis established by 
X-ray findings will be rated on the basis of limitation of 
motion under the appropriate diagnostic code(s) for the 
specific joint or joints involved.  When, however, the 
limitation of motion of the specific joint or joints involved 
is noncompensable under the appropriate diagnostic codes, a 
rating of 10 percent is for application for each such major 
joint or group of minor joints affected by limitation of 
motion, to be combined, not added under diagnostic code 5003.  
Limitation of motion must be objectively confirmed by 
findings such as swelling, muscle spasm, or satisfactory 
evidence of painful motion.  

In essence, the Board finds that there is no objective 
confirmation of limitation of motion or any significant 
symptomatology of the thoracic spine.  While there is X-ray 
evidence of arthritis and degenerative disc disease of the 
thoracic spine, the medical opinion evidence in this case 
establishes that the subjective symptomatology reported by 
the veteran, and by extension, the results of range of motion 
testing, are not reliable, and that his complaints are 
primarily attributable to a psychiatric disorder.  

On VA examination in July 2004, it was the opinion of the 
examiner that the veteran suffers from a chronic pain 
syndrome with significant depressive features and 
somatization.  The June 2007 examiner explicitly agreed with 
the findings of the July 2004 examiner and further stated 
that the veteran's symptoms and signs far outweigh the X-ray 
and MRI findings.  The examiner noted that very light touch 
on the skin produced extreme pain.  However, objectively, the 
muscles were normal, with no evidence of spasm.  The veteran 
was noted to be reacting much more severely than one would 
expect with the X-ray and MRI findings presented.  It was the 
June 2007 examiner's opinion that the veteran has a lot of 
psychological overlay, and he recommended that the veteran be 
seen by a psychologist for help with adjusting to pain or 
whatever else is bothering him.  

The veteran is not service connected for a psychiatric 
disability.  The Board may compensate the veteran only for 
service-connected disability.  However, the Board is 
precluded from differentiating between symptomatology 
attributed to a non service-connected disability and a 
service-connected disability in the absence of medical 
evidence which does so.  Mittleider v. West, 11 Vet. App. 
181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. 
App. 136, 140 (1996).  

In this case, the medical evidence provides clear attribution 
of the veteran's symptoms to a psychiatric disorder.  Two VA 
examiner's found that the veteran's subjective complaints 
were not supported by the objective evidence, and that this 
discrepancy in symptomatology was attributable to psychiatric 
overlay or somatization.  The June 2007 examiner also noted 
several discrepancies between what the veteran reported to 
him during the examination and information contained in the 
service records.  In light of these discrepancies and the 
opinions of both VA examiners, the Board finds that the 
veteran's statements with respect to his symptomatology are 
not credible and are not to be afforded any probative weight.  

In terms of objective evidence, the Board finds most 
probative the opinion of the June 2007 examiner that there, 
"is no evidence of functional impairment due to any problems 
with his thoracic spine."  The examiner acknowledged April 
2007 MRI findings showing degenerative disc disease at all 
levels.  However, he described this as "minor" with no 
evidence of herniation at the present time.  Further, there 
was no evidence of muscle spasms, reflex changes, motor 
impairment, or sensory impairment.  The back appeared 
straight, with no evidence of any curvature problems.  There 
was no evidence of guarding, abnormal gait, or abnormal 
spinal contour, such as scoliosis, reverse lordosis, or 
abnormal kyphosis.  

These findings are similar to findings noted on a private MRI 
dated in September 2003.  There, while the T6-7 disc was 
found to be markedly degenerated, it had only a "mild" 
annular bulge which was having no effect upon the cord or 
neural foramina.  There was also a slightly more prominent 
bulge at T7-8, but the neural foramina were patent and there 
was no effect upon the cord.  On VA examination in October 
2002, there were only minor degenerative changes noted.  

Notably, a private MRI report dated in January 2008 was 
submitted by the veteran, and this shows some local 
degenerative disc disease with mild disc bulge having little 
overall effect on the thecal sac and none on the cord.  An 
occasional Schmorl's node was also noted.  However, there was 
no other significant abnormality of the thoracic region 
detected.  

With respect to arthritis, on VA examinations in October 
2002, the veteran's degenerative joint disease of the 
thoracic spine was described as mild.  

In sum, while the objective evidence clearly shows the 
presence of abnormalities of the thoracic spine, these have 
been objectively described as minor and are not shown to 
result in any functional impairment.  

The Board has considered the veteran's request that his 
thoracic disability should be rated on the basis of 
intervetebral disc syndrome, specifically under the former 
Diagnostic Code 5293.  However, as found by the June 2007 
examiner, although there are minimal degenerative changes, 
there is no neurological impairment resulting from those 
degenerative changes, and a compensable rating on the basis 
of intervertebral disc syndrome is not supported.  

Consideration has been given to assigning a staged rating; 
however, at no time during the period in question has the 
disability warranted a higher rating.  See Hart v. Mansfield, 
21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 
(1999).

In light of the lack of objective evidence of limitation of 
motion, the Board acknowledges that the current 10 percent 
rating under Diagnostic Code 5003 may not be supported.  
However, the matter of a rating reduction is not currently 
before the Board, and the Board expresses no opinion as to 
the whether such reduction is warranted.  

Migraine Headaches

The veteran is currently assigned a 10 percent disability 
rating for headaches for the period prior to December 19, 
2003, and a 30 percent rating from December 19, 2003, to the 
present.  A 10 percent disability rating for migraine 
headaches is warranted for characteristic prostrating attacks 
averaging one in 2 months over the last several months.  
38 C.F.R. § 4.124a, Diagnostic Code 8100.  A 30 percent 
rating is warranted for characteristic prostrating attacks 
occurring on an average once a month over the last several 
months.  A 50 percent rating is authorized for very frequent, 
completely prostrating and prolonged attacks productive of 
severe economic inadaptability. 

The rating criteria do not define "prostrating," nor has the 
Court.  Cf. Fenderson, supra (in which the Court quotes 
Diagnostic Code 8100 verbatim but does not specifically 
address the matter of what is a prostrating attack.).  By way 
of reference, the Board notes that according to WEBSTER'S NEW 
WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION 
(1986), p. 1080, "prostration" is defined as "utter physical 
exhaustion or helplessness."  A very similar definition is 
found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th 
Ed. 1994), in which "prostration" is defined as "extreme 
exhaustion or powerlessness."  

The veteran was afforded a VA neurologic examination in June 
2007.  The veteran reported that he has "migraines four times 
a week."  The migraines last from 1 to 2 days, and he has to 
take off work.  During these attacks, he tries to get in a 
dark room, because he says he is light-sensitive.  When he 
has the headaches, his pain is 8 or 9 out of 10.  The veteran 
reported the frequency of these attacks as totaling four 
times a week, each lasting 1 to 2 days.  The examiner 
reported that these are migraine headaches, and the attacks 
are prostrating in nature, requiring days off work.

While on its face, the veteran's description and the 
examiner's statement would seem to confirm the presence of 
very frequent, completely prostrating and prolonged attacks, 
the Board notes that the veteran's June 2007 account 
conflicts with other accounts he has given to medical 
examiners, and conflicts with other evidence he has 
submitted.  

On VA examination in July 2004, the veteran reported that his 
migraine headaches occur at a frequency of as much as two per 
week.  Of note, in roughly contemporaneous December 2003 and 
April 2004 outpatient reports, the veteran reported that his 
migraines were occurring on a frequency of 1 to 3 per month.

Most significant in determining the frequency of completely 
prostrating attacks is the amount of time missed from work.  
On VA examination in June 2007, the veteran reported that he 
had missed 33 days since November 2006.  From June 2006 to 
November 2006, he reported that he missed 25 days.  The 
examiner noted that only some of that time was missed due to 
his migraine headaches, and the rest due to neck and back 
problems.  However, the amounts of time missed from work 
reported by the veteran do not comport with the actual leave 
reports submitted by him.  The veteran did not submit reports 
for the specific periods reported to the June 2007 examiner; 
however, the reports he submitted show that he used 85 hours 
of sick leave between March 31, 2003, and the end of 2003.  
During all of 2004, he used 118.25 hours of sick leave.  
Between the beginning of 2005 and April 28, 2005, the veteran 
used 38 hours of sick leave.  

Of course, the sick leave reports do not indicate the reason 
for the leave taken, whether it was for neck and back 
problems, headaches, or some other reason.  However, even if 
conceded that the entire amount of time taken from work for 
sick leave was for headaches, this simply does not support 
the veteran's contention of suffering prostrating attacks 
four times per week, or indeed, two times per week, as 
recently reported.  In so finding, the Board uses the 
veteran's own description of prostrating attacks as given to 
the June 2007 examiner of migraines lasting 1-2 days 
requiring him to take off work.  The veteran's account is 
simply not possible in light of the total amount of leave 
actually taken.  

The Board also notes with respect to the veteran's statement 
that his prostrating attacks require days off work, and that 
these attacks last one to two days, the leave slips submitted 
by the veteran generally reflect requests of only a few hours 
on any given day.  During 2003, there is only a single 
instance where two consecutive days of sick leave were taken, 
and only two other instances where full single days were 
taken.  In 2004, three consecutive days were taken on one 
occasion, and full single days were taken on only four 
occasions.  In 2005, only one full single day was taken.  
This certainly does not reflect prostrating attacks on the 
frequency reported by the veteran.

The Board accords greater probative weight to the leave 
reports than to the veteran's recollections of the time he 
missed.  The fact that the June 2007 examiner reported the 
frequency of attacks does not increase the probative value of 
the report, as the examiner was clearly reciting the 
veteran's statements.  As such the Board accords it little 
weight of probative value.  See Godfrey v. Brown, 8 Vet. App. 
113, 121 (1995) [a medical opinion that is based on the 
veteran's recitation of medical history, and unsupported by 
clinical findings, is not probative].

The Board also acknowledges that the June 2007 examiner 
described the veteran's headaches as "prostrating."  However, 
use of such terminology by VA examiners and others, although 
evidence to be considered by the Board, is not dispositive of 
an issue.  All evidence must be evaluated in arriving at a 
decision regarding an increased rating.  38 C.F.R. §§ 4.2, 
4.6 (2007).  Again, the examiner was clearly reporting the 
veteran's statements, which the Board has found are 
inconsistent with his previous statements, and with other 
evidence of record.  As the Board has discounted the 
probative value of the veteran's statements, a medical 
finding based explicitly on those statements must also be 
discounted.  

In determining whether the veteran has suffered prostrating 
attacks, the Board must look not only to the veteran's 
description of his symptoms, but to his actions and behavior 
in response to those symptoms.  In this case, his actions do 
not indicate complete prostration to the extent now reported 
by him, or to the extent contemplated for a 50 percent 
rating.  While the veteran's headaches clearly impair his 
ability to function, there is a clear distinction between 
such impairment and complete prostration.  

Based on the medical evidence of record, the Board concludes 
that the veteran's headaches are manifested by characteristic 
prostrating attacks occurring on an average once a month.  
Accordingly, they do not warrant a higher rating under 
Diagnostic Code 8100.

The Board also notes that the veteran's headache disorder was 
originally rated under provisions pertaining to traumatic 
head injury.  Diagnostic Code 8045 specifically addresses 
brain disease due to trauma; however, it provides that purely 
subjective complaints such as headache, dizziness, insomnia, 
etc., recognized as symptomatic of brain trauma, will be 
rated 10 percent and no more under diagnostic code 9304 in 
the absence of a diagnosis of multi-infarct dementia.  The 
veteran has not been diagnosed with such a disorder.  
Accordingly, it would not be to the veteran's advantage to 
rate the disability under Diagnostic Code 8045.

The Board also finds that there is no basis in the medical 
record for the treatment of the periods from September 30, 
2002, to December 19, 2003, as separate from the current 
period, in which a 30 percent rating has been assigned.  In 
essence, the RO applied a different diagnostic code to the 
earlier period, evaluating the veteran under a code for 
mental disorders.  While it is true that the record did not 
contain a true diagnosis of migraines prior to a December 
2003 outpatient pain clinic record, there is no indication 
that this represented a change in the character of the 
veteran's symptomatology, or that it did not encompass the 
symptomatology prior to that date.  On the contrary, the 
diagnosis appears to have been applied to past symptomatology 
reported by the veteran.  In the Board's view, regardless of 
the diagnosis of record, Diagnostic Code 8100 has, throughout 
the period on appeal, been the most appropriate diagnostic 
code to evaluate the veteran's headaches.  

In light of the symptomatology discussed above, the Board 
finds that a 30 percent disability rating is warranted for 
the entire period on appeal.  However, a higher rating is not 
warranted for any portion of the appeal period.  See Hart, 21 
Vet. App. 505; Fenderson, 12 Vet. App. 119.

Other Considerations

The Board has considered whether this case should be referred 
to the Director of the Compensation and Pension Service for 
extra-schedular consideration.  By regulation, extra-
schedular ratings may be assigned where the schedular 
criteria are inadequate and there are exceptional factors 
such as the need for frequent hospitalization or marked 
interference with employment.  38 C.F.R. § 3.321(a) (2007).  

The record reflects that the veteran has not required 
frequent hospitalizations for his thoracic spine disability 
or headaches, and that the manifestations of each disability 
are not in excess of those contemplated by the schedular 
criteria.  

The question of interference with employment is addressed 
above.  Clearly, the veteran's service connected disorders 
interfere with his industrial capacity.  However, the 
disability ratings assigned are recognition that industrial 
capabilities are impaired.  See Van Hoose, 4 Vet. App. 361, 
363 (1993).  The type of impairment demonstrated on 
examination is completely consistent with the disability 
ratings assigned.  The Board also notes that it was the 
opinion of the June 2007 examiner that the veteran should be 
able to do any type of work with the thoracic spine disorders 
that were found on examination and X-ray and MRI studies.  

In sum, the record when considered as a whole does not 
indicate that the average industrial impairment from these 
disabilities would be in excess of that contemplated by the 
assigned evaluations, to include the 30 percent evaluation 
granted herein.  Accordingly, the Board has concluded that 
referral of this case for extra-schedular consideration is 
not in order.  


ORDER

Entitlement to an initial rating for a thoracic spine 
disability higher than 10 percent is denied.

The Board having determined that the veteran's migraine 
headaches warrant a 30 percent rating, but not higher, 
throughout the initial rating period, the appeal is granted 
to this extent and subject to the criteria applicable to the 
payment of monetary benefits.  




____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs